McNeely v. Board of Appeal of Boston

• Decision Date: 03 July 1970
• Citation: 358 Mass. 94,261 N.E.2d 336
• Parties: James D. McNEELY et al. v. BOARD OF APPEAL OF BOSTON et al. (and a companion case between the same parties).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 336

261 N.E.2d 336

358 Mass. 94

James D. McNEELY et al.

v.

BOARD OF APPEAL OF BOSTON et al. (and a companion case between the same parties).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 4, 1970.

Decided July 3, 1970.

Gael Mahony, Boston (Richard W. Renehan, Boston, with him), for plaintiffs.

Thomas J. Carens, Boston (Burton Peltz, Boston, with him), for Suffolk University.

Before WILKINS, C.J., and SPALDING, KIRK, SPIEGEL and REARDON, JJ.

BY THE COURT.

There are two appeals before us in this litigation. One is an appeal by the plaintiffs from a final decree in the Superior Court stating that the board of appeal of Boston (the board) did not exceed its authority in granting a variance to Suffolk University (Suffolk) from several provisions of the Boston Zoning Code (the code). The other appeal is by Suffolk from an order denying an matter of law Suffolk's motion made after the entry of the final decree that the plaintiffs' bond, required by St.1956, c. 665, § 11, be increased. We defer discussion of the second appeal until we have disposed of the first.

Many facts are not controverted. Suffolk was founded in 1906 exclusively as a law school. It gradually grew. Suffolk was incorporated as a university with power to grant degrees, including graduate degrees in several fields of study. St.1914, c. 145. St.1935, c. 15. St.1937, c. 237. From the beginning Suffolk has been located on the north slope of Beacon Hill. Its present location is at the corner of Temple and Derne streets. The Derne Street aspect of the present building (to which a large brick addition was made in 1965) faces the north side of the yellow brick and marble annex to the State House. The east side of the present building is on Temple Street. The west side abuts on Ridgeway Lane, which is a narrow way probably dating back to colonial days. Ridgeway Lane barely permits the one way passage of a vehicle of average size.

Because of the increase in enrollment, the consequent need for more space, and the availability of a nearby parcel of land (the locus) recently occupied by a supermarket, Suffolk and the owners of the locus, Cedar Realty Trust (the trust), in 1967 entered into a purchase and sale agreement contingent upon the granting of a variance which would permit Suffolk to construct a school building according to a plan submitted to the building commissioner. The commissioner denied the application for a permit on the grounds that the proposed building would violate the code in several stated particulars which will later be mentioned. A portion of the city zoning map, showing the general area with which we are concerned, is reproduced with this opinion.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Suffolk and the trust appealed to the board under St.1956, c. 665, § 9, which in its essentials corresponds to G.L. c. 40A, § 15. ¹ While the appeal was pending Suffolk filed a letter with the board stating that it was willing to limit the height of the proposed building to five stories with a basement and subbasement rather than, as originally proposed, a partly six and party seven story building above ground.

After a hearing the board granted the variance in the several particulars requested subject to the proviso '(t)hat the proposed building be no more than five stories in height, with a basement and a sub-basement.'

The plaintiffs as parties aggrieved by the decision of the board have appealed under the provisions of St.1956, c. 665, § 11. The plaintiffs fall into two groups: a group of individuals who are owners and occupants

The locus is in an L--2 zoning district. streets and Ridgeway Lane, and a group who constitute the Hancock Historical Trust, owners of several properties on Hancock Street.

The locus is situated on the south side of Cambridge Street, number 150, between Hancock Street and Ridgeway Lane. It is almost directly across from the Harrison Gray Otis House and The Old West Church on the north side of Cambridge Street. It consists of approximately 8,400 square feet, is nearly rectangular in shape and is entirely occupied by a one story building used for several years as a grocery store. Suffolk plans to demolish the existing building and to erect a new building of Type I construction which will occupy the entire lot and will be five stories high, each floor to have the same area as the lot.

The locus is in a L--2 zoning district. This means a local business district permitting a floor area ratio of two, that is, the floor space of a building to be constructed in the district shall not exceed twice the size of the lot. Other requirements of this zoning classification as applied to the proposed building are fiftynine off street parking spaces, an off street loading bay, a front yard twenty feet in depth on Hancock Street, a backyard (where the locus abuts the property of one of the plaintiffs) thirty feet in depth, and a parapet setback on the fifth floor of the Ridgeway Lane side of the building.

No one of these several requirements will be met by the proposed building. The floor area ratio instead of two will be less than 6.3 (which would have been the floor area ratio of the part six and part seven stories originally proposed). There will be no off street parking spaces, no loading bay, no front yard or backyard and no parapet. The board 'granted relief' as to each section of the code which imposed the specific requirement. It set forth no reason for granting a variance as to any one of the requirements except the one relating to the off street loading bay. In that connection the board wrote, 'after the original deliveries of school furniture, etc., there will be very little delivery and receiving of materials made, and it will consist mostly of small items, such as school supplies, books, papers, etc.'

The board made the following general findings: 'the lot is abutted on three sides by streets; the fourth side is under private ownership, and it is not possible to obtain additional land in order to comply with the above mentioned requirements of the Zoning Code. * * * (F)or the reasons aforesaid that the exceptional circumstances peculiar to this specific case justify a relaxation of the restrictions imposed by the statute, and that the varying of the terms of the Zoning Act as outlined above will not conflict with the intent and spirit of said Zoning Act provided the following proviso is carried out. Having in mind the foregoing findings of fact, the Board is of the opinion that this is a specific case where a literal enforcement of the Act involves a substantial hardship upon the appellant as well as upon the premises, and where desirable relief may be granted without substantial detriment to the public good and without substantially derogating from the intent and purpose of the Zoning Act.'

The plaintiffs appealed from the decision of the board to the Superior Court under St.1956, c. 665, § 11, which in its main features corresponds to G.L. c. 40A, § 21. In addition to the facts heretofore stated, the judge found that Suffolk has 'an impelling need for this proposed new structure. * * * If Suffolk were not granted a variance, it could still build a two and one-half story classroom building within the requirement of the Zoning Code, but such building would accommodate approximately only 150 students, while a building erected in accordance with the variance granted would accommodate approximately 550 students. With the erection of a two and one-half story building at 150 Cambridge Street, such building would be impracticable. The variance granted by the * * * (board) is the minimum variance required to allow Suffolk a reasonable use of the land. * * * A denial of a permit would work a substantial hardship on Suffolk by imposing a limitation on its corporate purpose to furnish educational facilities and instruction to qualified students and the general public.'

The judge found that there were no height limitations within an L--2 district and no restrictions on the use of property for educational purposes. He concluded that 'there is no detriment to the public good by granting relief' and 'no substantial derogation of the intent and purpose of the Zoning Law.' He entered the decree from which the instant appeal is taken.

1. Suffolk's main contention is that on constitutional grounds the zoning restrictions of the code do not apply to its proposed building. We defer consideration of that contention, which is urged most strongly upon us, pending discussion whether, independent of the contention, there were grounds for granting the variance.

2. The plaintiffs, citing numerous cases, argue that none of the several requisites essential to the granting of a variance has been shown to exist. There is merit to their contention. Specifically the judge did not find and the evidence would not support a finding that there are conditions especially affecting the land or the existing building which do not affect the zoning district generally. In truth the conditions affecting the land and the existing building are typical of rather than distinguishable from the conditions affecting other parcels and buildings in the same zoning district on the south side of Cambridge Street. The special consideration which Suffolk seeks does not arise from any conditions especially affecting the land or existing building, but arises from the desire of Suffolk to construct a new building, not conformable to zoning requirements but conformable to a plan which will provide the accommodations for a substantially greater number of students at a substantially lower cost per floor area unit. Abbott v. Appleton Nursing Home, Inc., 355 Mass. 217, 220--221, 243 N.E.2d 912. Similarly, the 'impelling need' does not spring from conditions at the locus, but from the overcrowded conditions at the present location of the school. Sullivan v. Board of Appeals of Belmont, 346 Mass 81, 190 N.E.2d 83. See...